Penalties
29 Betezy.com.au Pty Ltd ("Betezy.com") has contravened the FW Act in the following respects:
(a) by not paying monthly commissions due under the 2009 commission agreement, in contravention of s 323(1);
(b) by failing to give the applicant a pay slip within one working day of paying an amount to her in relation to the performance of her work, in contravention of s 536(1); and
(c) by underpayment of the applicant's normal salary, in contravention of s 323(1);
30 Betezy Pty Ltd ("Betezy") has contravened the FW Act and, in one respect, the Fair Work Regulations 2009 (Cth) ("the regulations") in the following respects:
(a) by threatening to fire the applicant, in contravention of s 340(1)(a)(iii);
(b) by discontinuing the applicant's access to its computer system and by suspending her from her employment (by withholding payments of remuneration), in contravention of s 340(1)(a)(ii);
(c) by not paying monthly commissions due under the 2010 commission agreement, in contravention of s 323(1);
(d) by failing to give the applicant a pay slip within one working day of paying an amount to her in relation to the performance of her work, in contravention of s 536(1);
(e) by failing to tell the applicant where her employment records were kept in contravention of reg 3.43(1) of the regulations; and
(f) by failing to pay bonuses due to the applicant under her contract of employment, in contravention of s 323(1).
31 Before considering what are the appropriate penalties to be imposed for these contraventions, it is necessary to determine whether any two or more of them constitute a single contravention pursuant to the provisions of s 557(1) of the FW Act, which provides as follows:
(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
Subsection (2) contains a list of the provisions upon which subs (1) operates, including ss 323(1) and 536(1) but not s 340(1).
32 From the terms of s 557(1)(a), it is apparent that each of Betezy.com and Betezy must be considered separately when determining what constitutes a course of conduct. From that starting point, the applicant accepts that the contraventions mentioned above and lettered (a) and (b) in the case of Betezy.com, and that those lettered (c), (d) and (f) in the case of Betezy, amount to courses of conduct according to those groupings. The contravention lettered (e) in the case of Betezy was only a single contravention, and is thus not subject to s 557. The remaining group of contraventions - lettered (c) in the case of Betezy.com - is the subject of a different approach by the applicant, and I shall return to it.
33 The respondents' approach differs from that of the applicant. They press for all of the contraventions to be considered as a single course of conduct by Betezy.com and Betezy respectively; that is to say, they submit that s 557 produces the result that there was only one contravention by each of Betezy.com and Betezy (aside from the contraventions of s 340 and reg 3.43). I do not accept that submission. Section 557(1) refers to "2 or more contraventions of a civil remedy provision" [emphasis added]. This is in my view, an instance where a statutory intention to the contrary of the primary operation of s 23 of the Interpretation Act appears, whether by the terms of that section itself with respect to the period before 27 December 2011 or by s 2(2) of that Act with respect to the period since that date: see items 2 and 49 of Sched 1 to the Acts Interpretation Amendment Act 2011 (Cth). The contrary intention appears from the subject-matter of s 557, namely, the circumstances under which multiple contraventions are collapsed into a single contravention. In this context, I take the view that the reference to a civil remedy provision in the singular was a conscious, specific, one. The section should not, in my view, be given a broader operation than that for which the legislature expressly provided. The outer limits, therefore, of the operation of s 557 in the present case are set by the statutory provisions under which the various contraventions arose. Subject only to the reservation expressed at the end of the previous paragraph, I propose to consider the matter of penalties within that framework.
34 I deal first with the respondents' failure to pay commissions. Under both the 2009 commission agreement and the 2010 commission agreement, commissions were payable at the end of each month. Section 323 commenced on 1 July 2009, after which there were 40 months down to the end of the period with respect to which the applicant conducted her case, 31 October 2012. At the end of each of those months, there was a contravention by each of the respondents - linked to the 2009 commission agreement in the case of Betezy.com and to the 2010 commission agreement in the case of Betezy. The applicant accepted that there was, for each respondent, a course of conduct by which 40 contraventions were collapsed into one.
35 Notwithstanding that there was only a single contravention of s 323 in the case of each the respondents' failure to comply with the applicable commission agreement, the gravity of that contravention is properly, in my view, to be measured against the fact that it endured over more than three years and held the applicant out of her entitlement to what became, in time, a very considerable sum. This was not a case of an employer, for example, overlooking a wage increment which had been the subject of an award variation or similar instrument. The commissions which were not paid had been specifically agreed between the parties and, on any view, constituted a very substantial component of what ought to have been the applicant's remuneration. It was submitted on behalf of the respondents that I should view their shortcomings in these respects as the result of "bad management". Although undeniable so far as it goes, that description would, in my view, present an unduly limited assessment of the gravity of the respondents' omissions.
36 The applicant's evidence is replete with references to the occasions upon which she raised with the respondents - or with whichever of them was her employer at the time - their non-payment of commissions. She ought not to have been obliged to do so. Unsurprisingly, these complaints were more numerous towards the end of her active working time in the employ of Betezy, and ultimately led to the contraventions by Betezy of s 340 of the FW Act in the respects to which I referred in my reasons of 10 September 2013. The making of the complaints by the applicant removes any justification for the suggestion that the respondents were not fully aware of their failures to pay the commissions as they fell due, and no such suggestion was in fact made. Their response to the applicant's complaints was, largely, to fob her off by reference to business or trading circumstances which, she was expected to take on trust, would soon permit them to make the necessary payments. That she had the patience and forbearance to continue serving the respondents despite their procrastinations is one of the more remarkable aspects of the present case.
37 Another remarkable aspect is that the persons with whom the applicant dealt were in the senior management of the respondents. One sense in which the term "bad management" is sometimes used is that which invokes a failure by management to supervise or to control the compliance by subordinate staff with obligations imposed on them. But the present case is more than simply a case of a failure of management considered as a process: it is a case of a failure by management as such. At relevant times, the applicant was dealing with the chief executive of the respondent concerned - originally Mr McDonald and more recently Mr Kay. In these circumstances, the respondents could hardly expect the court to take a lenient view of their transgressions.
38 The respondents' procrastinations also have to be viewed in the light of their failure to maintain the records which would have made the calculation of the applicant's entitlements a simple matter. They entered into agreements of their own drafting with the applicant, and then omitted to put in place any systematic means by which they, or she, would know what those entitlements were. In the result, the applicant has been able to achieve a measure of success in this case only by a very cumbersome and, I would infer, expensive process. Yet another of the remarkable features of this case has been that, ultimately, it was the applicant who joined the dots in a way that made possible a calculation of her own entitlements. That the respondents had never done this - and made no serious attempt to do it even once the case came to court - represents a serious shortcoming in the performance of their obligations as employers.
39 At trial, the respondents advanced an ultimately unsuccessful argument that the commission agreements were both, in relevant respects, void for uncertainty. I make no criticism of their legal representatives for having proceeded in this way, even though it was not, apparently, until very late in the piece that it occurred to someone that such an argument might be open. However, it is worth mentioning that, for the whole of the period during which the applicant was providing active consideration for her entitlement to commission, no such suggestion was made. It could never be said that this was a case in which the respondents found out only as the result of court proceedings that they were under a legal obligation of a certain kind. The respondents knew that they were obliged to the applicant, and knew that they were doing nothing to comply with that obligation.
40 Is there anything that might be said in defence of the respondents on the matter of their failure to abide by the commission agreements? A number of matters were put forward on their behalves. First, it was pointed out that this was the first occasion on which either of them had been found to have contravened any workplace laws. That is a valid consideration, the result of which is that the penalties to be imposed must be appropriately responsive to the gravity of the conduct to which they relate, in its own right.
41 Secondly, there was evidence that, since the events to which this case relates, Betezy has appointed a new chief executive officer, Robert Michael Parker, in place of Mr Kay (the appointment having been made on an acting basis on 14 April 2013 and on a substantive basis on 2 October 2013). Betezy's financial, human resources and payroll department has grown from one staff member to three full-time staff members and one part-timer. There are no commission agreements of the kind entered into with the applicant. Commissions are still paid, but under arrangements similar to those under which the applicant became entitled to bonuses, and are thus, according to Mr Parker (who gave evidence on the penalties hearing), "easier to calculate and more reliable".
42 It is not apparent how these measures on behalf of Betezy might make any meaningful contribution to a plea by way of mitigation in relation to the contraventions of s 323 constituted by the respondents' failure to pay the applicant her entitlements under the commission agreements. Mr Parker's evidence went no further (in this respect) than to describe organisational changes which Betezy had made. Under cross-examination and re-examination, it became clear that Mr Parker had brought his company no closer to a position of being able to comply with obligations of the kind that arose under those agreements.
43 The applicant remains an employee of Betezy, and her solicitors' letter of 13 September 2013, enquiring of Betezy what was the amount to which she was entitled under the commission agreements in respect of the period 1 November 2012 to 31 August 2013, remained, as at the hearing on penalties on 7 October 2013, unanswered. In a submission made at the conclusion of the hearing on that day, counsel for the respondents justified that omission on two grounds, first, that Betezy had been busy trying to work out its liability up to 31 October 2013 (one aspect of which was whether the Brisbane Football Club was to be included), and secondly, and more importantly, that the respondents did not want to do anything that would prejudice their rights on appeal in respect of their liability under the commission agreements. As to the first justification, Mr Parker said nothing about it in his affidavit read at the penalties hearing. Under cross-examination, he answered in the affirmative a question whether he had taken any steps to calculate the commission that was payable to the applicant for the period referred to in the letter, but there was no evidence as to what those steps were, and it became clear that Mr Parker was unaware whether Betezy was able to make calculations based on when betting sessions ended. As to the second justification, that is the choice of the respondents, but they cannot, at the same time, expect the court to take into account, as a matter of mitigation, their having given prompt attention to the applicant's claims with respect to the period covered by her solicitors' letter of 13 September 2013.
44 In relation to the commission agreements, the respondents have neither apologised to the applicant nor expressed any remorse. Senior counsel for the respondents indicated in submissions that this omission was deliberate (in a setting in which apologies for other contraventions had been made to the applicant), with a view to avoiding the compromise of any appeal against the findings I have made in relation to those agreements. Again, that is the respondents' choice, but they cannot expect that I will determine the penalties proper to be imposed as though there had been such an apology, or expression of remorse.
45 Thirdly, it was submitted that "there was considerable uncertainty about the meaning of critical provisions of the commission agreements and thus it was difficult for [the respondents] to assess realistically their liabilities". For reasons which I have already expressed, it should be clear that I think very little of this submission. The respondents' inability "to assess realistically their liabilities" was never, at the time, the reason why the applicant was not paid her entitlements. There was no suggestion in the evidence that they ever made an attempt at such a realistic assessment.
46 Fourthly, it was submitted that the applicant, "as the employee who best understood this part of the business, also bears some responsibility" for the uncertainties referred to in the previous paragraph. In the circumstances, the only thing that need be said about this unworthy submission is that it is conspicuously without merit.
47 Fifthly, both parties referred to communications which had passed between them in the interlocutory period, which were without prejudice at the time, for the positions which they advanced with respect either to penalties or to costs. In the case of the respondents, it was submitted that these communications demonstrated that, for most of the time, "the applicant maintained exorbitant claims well beyond any realistic assessment of the respondents' liabilities", that "it was extremely difficult to 'pin down' the applicant to particular figures", and that the respondents were, therefore, "hostage to the applicant's exorbitant claims", and were unable "to avoid findings of contraventions except by the payment of an exorbitant sum to the applicant".
48 I shall have to consider submissions along these lines below when I come to the matter of costs. On the matter of penalties, however, I cannot see that the pre-trial communications which passed between the parties can have anything more than a marginal impact on the outcome. The proceeding was commenced on 19 January 2012, meaning that there was a period of about nine months' overlap when the parties were in communication about possible settlement of the commission claims and the applicant's entitlements, to the extent that they were taken into account in my reasons of 10 September 2013, were continuing to accrue. In relation to that period, it is sufficient to say that none of the evidence to which I have been exposed comes close to justifying the contention that, but for the applicant's "exorbitant" claims, the respondents might have come to terms with her which would have led to the payment of her legitimate entitlements.
49 In short, save for the absence of a previous relevant contravention (and subject to the matter dealt with in the next paragraph), there is little or nothing that can be said by way of mitigation on behalf of the respondents.
50 The respondents also made a global submission which sought to invoke a particular application of the totality principle. They pointed out that the change in the applicant's employer from Betezy.com to Betezy, and the corresponding introduction of the latter as a party to the 2010 commission agreement, were uncontroversial and benign adjustments of business arrangements which had no impact on the substance of the parties' relationship. The existence of two employers, and therefore of two "course of conduct" contraventions, differed from a situation in which there was one contravener only in respects which do not bear upon the gravity of the conduct of either employer. The court should, accordingly, make some adjustment to the penalties that would otherwise be imposed in recognition of the "totality" of the contravening conduct which has been proven in the case.
51 There is some force in this submission, but it should not be taken too far. The 2010 commission agreement, drafted as it was by the respondents, differed from the 2009 commission agreement in respects other than the identity of the employer party. It effected a substantial modification to the definition of "Betezy Sponsorship Arrangements" which was to the applicant's detriment, and retroactively so. In so providing, the 2010 commission agreement brought with it a quite different basis of entitlement for the applicant. The two agreements thus differed not only in respect of the employer party to them, but also in respect of the substantive terms of the applicant's entitlements. While I accept that the totality principle does have a role to play here, it should also be recognised that there were two quite discrete civil wrongs done to the applicant by two different corporate entities.
52 The maximum penalty which may be imposed for a single contravention of s 323 of the FW Act - and thus for a "course of conduct" contravention arising from the operation of s 557 - is $33,000 (in the case of a corporation). Viewed separately, and given the gravity of the contraventions involved, I would regard each as requiring a penalty of $25,000. Taking into account the considerations referred to in the previous paragraph, I propose to impose a penalty of $22,000 upon each of the respondents.
53 I propose to deal next with the other two areas involving contraventions of s 323, commencing with Betezy.com's failure to pay the applicant her normal salary. In para 161 of my reasons of 10 September 2013, I said:
The difficulty is that the applicant was paid her remuneration in what were on any view unusual ways. Because of the settlement, it is necessary to say no more than that, although it may be accepted that there were underpayments, the occasion for each presumptive contravention of s 323 was not readily apparent from the material with which the court was presented. For example, written submissions filed on behalf of the applicant demonstrated with precision what was said to be a total underpayment of $786 in respect to the period from 15 December 2008 to 20 May 2010. However, the evidence was not presented in a way that would justify the conclusion that there was an underpayment at the end of every pay week over that period.
In response to the invitation which I extended in para 162, the applicant prepared, and relied on, a schedule of the payments which she had received by way of normal salary in each of the weeks from 2 July 2009 to 23 December 2010.
54 That schedule demonstrated that the applicant had been underpaid -
(a) by an amount of $900 in each of the weeks from 2 July to 23 July 2009 (4 weeks);
(b) by an amount of $900 in each of the weeks from 6 August to 17 December 2009 (20 weeks);
(c) by an amount of $500 in each of the weeks from 31 December 2009 to 4 February 2010 (6 weeks);
(d) by an amount of $500 in each of the weeks from 18 February to 22 April 2010 (10 weeks);
(e) by an amount of $500 in each of the weeks from 27 May to 1 July 2010 (6 weeks); and
(f) by an amount of $496 in each of the weeks from 8 July to 23 December 2010 (25 weeks).
In each instance, these underpayments were expressed in after-tax terms (because of the provisions of the applicant's contract of employment). Since the applicant was entitled to be paid by the week, there were 71 contraventions in what I have listed above.
55 Additionally, the applicant was paid -
(a) the sum of $2,910 on 30 July 2009 (ie after period (a) in the table above), being $910 more than was her entitlement for that week, and leaving a net underpayment of $2,690 since 2 July 2009;
(b) the sum of $11,500 on 24 December 2009 (ie after period (b) in the table above), being $9,500 more than was her entitlement for that week, and leaving a net underpayment of $11,190 since 2 July 2009;
(c) the sum of $4,751 on 11 February 2010 (ie after period (c) in the table above) being $2,751 more than was her entitlement for that week, and leaving a net underpayment of $11,439 since 2 July 2009; and
(d) the sums of $3,500, $3,500, $7,500 and $6,500 on 29 April and 6, 13 and 20 May 2010 respectively (ie after period (d) in the table above) being $13,000 more than was her entitlement for those weeks, and leaving a net underpayment of $3,439 since 2 July 2009.
There followed the underpayments referred to in periods (e) and (f) in the table above, the net result of which was that, by 23 December 2010, the applicant had been underpaid by $18,839, after tax, since 2 July 2009.
56 That underpayments occurred in each of the weeks referred to in para 54 above is clear. However, the pattern of the payments made by Betezy.com to the applicant, and in particular the large but occasional sums paid between the periods referred to above, have become relevant to a submission made on behalf of the applicant, namely, that those large payments should be used to mark off five "course of conduct" contraventions. Once Betezy.com made a payment that satisfied its contractual obligations in a particular week, it was submitted, the previous "course of conduct" came to an end, and a new one commenced when Betezy.com next fell short in satisfaction of those obligations.
57 It was submitted on behalf of Betezy.com that all of the underpayments referred to above constituted a single course of conduct. Had there been no interruption to the pattern of underpayments, this would have been a single course of conduct on any view. Betezy.com should not be worse off, it was submitted, for having made occasional large payments that satisfied the applicant's entitlements in the week in question, and then some. Further, the interruptions to the pattern of underpayments disclosed nothing more than random, and frequently unsuccessful, attempts by a disorganised employer to remedy its past underpayments. The fact was, it was submitted, that Betezy.com underpaid the applicant consistently between July 2009 and December 2010, and there could not be discerned over this period any satisfactory point at which an existing course of conduct came to an end and a second or subsequent course of conduct commenced.
58 In this area, I would accept what is put by Betezy.com, substantially for the reasons set out in the previous paragraph. I consider that, in relation to underpayments of normal salary, Betezy.com's contraventions of s 323 of the FW Act between July 2009 and December 2010 constituted a single course of conduct and, therefore, a single contravention pursuant to the provisions of s 557. However, although there was only a single contravention of s 323 in relation to underpayment of salary because of the operation of s 557, that perspective imports a negative, as well as a positive, consequence for Betezy.com: a contravention constituted by a course of conduct that endured for nearly 18 months must be viewed more seriously than an isolated contravention.
59 What should be the appropriate penalty for that contravention? What is striking about Betezy.com's failings in this regard is that they constituted such a substantial underpayment and that they continued for so long. For an employee who was entitled to be paid $2,000 per week after tax to be short-paid by $900, or even by $500, demonstrates that we are not here dealing with underpayments at the margin. It was submitted on behalf of the applicant that these underpayments were deliberate, in the sense that senior management of Betezy.com knew they were occurring and chose not (at least fully) to rectify the situation. The respondents were not heard to contest that submission. Over the whole of the period which stands as a single contravention pursuant to s 557, the amount of after-tax income which was the applicant's due, and which had been denied her, was $18,839. That a salary-earner should be deliberately denied her income on such a scale, without any satisfactory explanation, is, I would have to say, little short of breathtaking.
60 It was submitted on behalf of the applicant that general deterrence was a factor which should speak loudly in the circumstances of the present case. Counsel referred me to the words of Marshall J in Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29]:
It is important to ensure that the protections provided by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless they are respected.
His Honour was referring to the WR Act, but his observations are equally apposite in the case of contraventions of the FW Act. The present is, it seems, one of the first instances in which s 323 has been enforced in relation to obligations arising under a contract of employment. It would, in my view, be appropriate for employers generally to be given a firm message that any failure to comply with their contractual obligations to employees on a scale similar to that which has been the subject of evidence in the present case is, if the matter proceeds in court, unlikely to have a low-cost outcome.
61 Two further submissions were made on behalf of the applicant in this area of the case. It was submitted that I should take into account the fact that the applicant had frequently complained to Mr McDonald about her underpayments of salary, which complaints had been dismissed peremptorily. To the extent that such matters are proper to be taken into account, they are, in my view, rolled up in the considerations referred to in para 59 above.
62 The other submission related to the mechanism used by Betezy.com to make $10,000 of the $11,500 payment on 24 December 2009, $3,251 of the $4,751 payment on 11 February 2010, $2,000 of the $3,500 payment on 29 April 2010, $2,000 of the $3,500 payment on 6 May 2010, $6,000 of the $7,500 payment on 13 May 2010 and $5,000 of the $6,500 payment on 20 May 2010. Each of those payments was made not by Betezy.com directly but from a betting account in the name of "John Thomson". There was no such person: the applicant had been directed to open a betting account, but not in her own name, which she did. In at least some instances, the means by which credits were made to this account were unconventional and, it seems, irregular, but I do not accept the submission made on behalf of the applicant that Mr McDonald "involved" her in such irregularities as there may have been. Otherwise, I do not consider the means by which the payments in question were made, as distinct from the fact of the payments as such, to be relevant to the assessment of the penalty proper to be imposed on Betezy.com for its contravention of s 323.
63 In favour of Betezy.com it can again be said that it has not previously been found to have contravened s 323 or an analogous provision, but the persuasiveness of this point is to an extent undermined by the circumstance that, in this very proceeding, another serious contravention of s 323 has been established. Betezy.com should also be given some slight credit for having settled the applicant's salary claim during the course of the trial, but that happened only very late in the piece, by which stage the applicant had gone to the trouble and expense of preparing and leading her relevant evidence, and it must have been apparent to the respondents that there could be no defence to the claim. Finally, Betezy.com used the occasion of the penalty hearing to apologise to the applicant for its underpayments of her salary. I take that into account, but I am bound to treat the apology as a matter of little significance alongside the scale of the indifference which Betezy.com had shown to the applicant's legitimate claims over such a long period. The apology was, in short, too little, too late.
64 For this contravention - for which the maximum penalty is $33,000 - I would impose upon Betezy.com a penalty of $25,000.
65 The other contravention of s 323 which has been established in the present case is that constituted by Betezy's failure to pay bonuses in respect of nine months in the period from January to October 2011 (the subject of para 163 of my reasons of 10 September 2013). The applicant accepts that those failures amounted to a course of conduct within the meaning of s 557 of the FW Act and that there was, therefore, a single contravention. The total amount involved was $2,145 and was paid by Betezy on the first day of the trial. So far as I can see, there was never any defence to this claim.
66 At the penalty hearing, Betezy apologised to the applicant for its failure to pay her bonuses. To the extent that this was intended as an indication that Betezy well understood that it had fallen short of its obligations as an employer in relevant respects, I would have to say that it reflected a very late recognition of the situation which should have been apparent to it from the outset. As counsel for the applicant submitted, Betezy's conduct, including the evidence which it prepared to lead at trial, simply ignored this aspect of the applicant's case. The defence on which Betezy went to trial admitted that agents working under the control of the applicant had introduced clients who paid first deposits, but denied the applicant's entitlement to bonuses as a result. Because the claim was settled, how Betezy might have contemplated making good on this denial never came to be revealed.
67 The maximum penalty for this contravention of s 323 is $33,000. In the circumstances, I consider that a penalty of $7,500 is appropriate.
68 I turn next to the matter of the respondents' failure to provide the applicant with pay slips as required by s 536 of the FW Act. As mentioned in para 165 of my reasons of 10 September 2013, the applicant was never given a pay slip. She should have been given one on every occasion that she was paid an amount in relation to the performance of her work, that is, every week. There were, therefore, numerous contraventions of s 536, but the applicant accepts that, in relation to each of the respondents considered separately, there was a course of conduct which had the effect, under s 557, of collapsing the contraventions concerned into one.
69 I accept the submission made on behalf of the applicant that the unconventional means by which she was paid her remuneration - to the extent that she was so paid - made hers a case in which the provision of a regular pay slip was a matter of practical importance to her, and the respondents' omissions were, correspondingly, a matter of real concern. In other words, this should not be regarded as no more than a matter of worrisome red tape. Here I do not refer only to the unconventional means employed by Betezy.com to pay the applicant's salary which I have mentioned earlier in these reasons. In each of the weeks between 2 July and 3 December 2009, $500 of the applicant's after-tax remuneration was paid by a company called Casa Dell'Oro Australia Pty Ltd (or Casa Dell'Oro Pty Ltd or CDO Pty Ltd) which Mr Kay described as "effectively a payment company". This remuneration was, according to Mr Kay, related to the fact that the applicant, while employed by Betezy.com, had done some work for an entity described as "Dialabet". Further, in the weeks of 10 and 17 December 2009, $500 of the applicant's after-tax remuneration, and in each of the following weeks until that of 23 December 2010, $900 of the applicant's after-tax remuneration, was paid through a business, presumably owned by the respondents or one of them, described as "Ezy Call Centre". Again, Mr Kay explained the circumstance which led to the applicant being paid in part through this channel. There is no suggestion that the respondents were not entitled to source the funds from which the applicant would be paid in these ways, but the practice made it the more important for the applicant to have been furnished with a clear statement of the amount which she had been paid as salary each week. This was not done.
70 At the penalty hearing, the respondents apologised to the applicant for their failure to provide pay slips. Further, the changes which Betezy has made to its payroll administration are such that pay slips are now provided to employees as a matter of course.
71 The maximum penalty to be imposed for each of the contraventions of s 536 is $16,500. Taking the above considerations into account, I take the view that the appropriate penalty is $5,000 in the case of each respondent.
72 The next contravention to be considered is Betezy's failure to make employee records available to the applicant as required by reg 3.43 of the regulations. The request was made by the applicant's solicitors on 22 November 2011, by which time the battle lines were drawn. The fact of the refusal to provide the information in question to the applicant is admitted by the respondents, but they add, in their Defence, that, at the time, "the applicant was suspended indefinitely from her position due to inappropriate use of the respondents' cab charges and credit cards, which the applicant was both aware of and refused to explain to the respondents". That was, of course, no defence to the applicant's case, and it was not suggested otherwise at trial. The maximum penalty to be imposed for a contravention of reg 3.43 is $11,000. In the circumstances, I intend to impose a penalty of $1,500.
73 That leaves the contraventions by Betezy of s 340 of the FW Act, commencing with Mr Kay's threat to dismiss the applicant on 20 September 2011. It was submitted on behalf of the applicant that protections of the kind for which s 340 provides are "fundamental to the scheme" of the FW Act. That very high-level submission was not developed, in which circumstances it would be wrong for me to attempt to place these protections in some kind of rank order apropos the scheme of that Act, which involved a number of initiatives when it was enacted in 2009. I accept, of course, that the purpose of s 340(1)(a)(iii) is to protect an employee from, amongst other things, being threatened with dismissal for proposing to exercise a workplace right. From that, it is apparent that it is likewise intended that employees should be free, without threat of such reprisals, to make proposals of this kind. But the inherent seriousness which the legislature has assigned to conduct in contravention of s 340 is to be seen in the level of penalty that may be imposed on a contravener, namely, a maximum of $33,000.
74 In their submissions on penalty, it was not put on behalf of the respondents that Mr Kay's threat was a spur-of-the-moment thing which he came to regret. Indeed, because he went to trial on a denial of the applicant's version of the relevant conversation, Mr Kay effectively excluded himself, and thus also excluded Betezy, from offering any benign explanation for the threat he made to the applicant. I am, in the circumstances, obliged to take the threat at face value, which is as a statement consciously and deliberately made in the expectation that the applicant would take it seriously and would feel sufficiently intimidated to think no further about contacting her solicitor. Had that been the result of this conversation, it is likely that the substantial contraventions of the FW Act that have been brought to light in this case would forever have been concealed from view.
75 I do, therefore, regard this as a serious contravention of s 340. Before proceeding further, however, and because of a submission made on behalf of the respondents to which I shall refer, I propose to turn to the other compartment of the case in which a contravention of that section was proved.
76 Although s 340 is not subject to s 557, it was accepted by the applicant that the termination of her access to the computer system, the cessation of the payment of her remuneration and the suspension of her employment, all done in late October or early November 2011, should be treated as a single act covered by paras (b) and/or (c) of item 1 in the table in s 342(1). The respondents did not resist that approach, and I shall take it. It is not unreasonable to treat those three things as manifestations of Betezy's suspension of the applicant's employment.
77 That conduct on the part of Betezy was, in effect, by way of punishing the applicant for having procured her solicitors to write a letter of complaint on her behalf. As this case has demonstrated, the applicant had every reason so to proceed. There were some allegations contained in the letter which did not become part of this proceeding, but there were a number of important ones that did. It was no part of the respondents' case to contend that the applicant's having caused this letter to be written and sent compromised her ability to remain actively in the employ of Betezy. Indeed, Mr Kay's defence of his decision to treat the applicant as suspended had nothing to do with the letter: it related to the Cabcharge matters to which I referred in para 157 of my reasons of 10 September 2013. While those reasons do not exclude those matters as having made some contribution to Mr Kay's decision, in the light of my finding in para 158 I am bound to regard his explanations at trial as unsatisfactory.
78 I also consider it appropriate to take into account the fact that, at the time when her employment was suspended, the applicant was absent from work on sick leave. This was a difficult period for her. There is no evidence of any contemporaneous communication by Betezy to the applicant explaining what was being done, and why. Her access to her computer was terminated without explanation. The first she knew that she had been taken off pay was when her normal remuneration, due on 31 October 2011, did not appear in her bank account. In her affidavit, she said that she understood from the terms of the Defence filed by the respondents that Betezy had suspended her from her employment: there was no evidence that she had previously been so advised.
79 It was submitted on behalf of the respondents that, although s 557 has no relevant application, the events of 20 September and 27 October 2011 should in effect be treated together for the purposes of the assessment of penalty. Although I would not be justified in treating these two separate contraventions as one contravention, I do think that this is an appropriate situation for the application of the totality principle. There was some factual relation between the two contraventions: there was a commonality in context and in the identity of the individuals who participated in the associated conversations. The proposed action on the part of the applicant that provoked Mr Kay's threat in September later became a reality, and led to the contravention of late October or early November. What Betezy then actually did with respect to the applicant lay roughly along the continuum of what Mr Kay had threatened to do in September. The connection between the two contraventions is manifest.
80 As noted previously, there are no previous contraventions of these or analogous provisions which might be held against Betezy in the assessment of penalty. Further, at the penalty hearing, Betezy apologised to the applicant for its threat to dismiss her and for the suspension of her employment. I take these circumstances into account.
81 Having regard to the matters mentioned above, I propose to impose a penalty of $20,000 for each of these contraventions of s 340 of the FW Act.